WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1199/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1199/15 BEFORE: J.B. Lang: Vice-Chair HEARING: May 29, 2015 at Toronto Written DATE OF DECISION: August 4, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1712 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 12, 2014 APPEARANCES: For the worker: For the employer: Interpreter: J. Pasel, Union Representative Not participating N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1199/15 REASONS (i) Introduction [1] The worker appeals a decision of Mr. B. Romano, an Appeals Resolution Officer (ARO) with the Workplace Safety and Insurance Board ( the Board ). In that decision, dated March 12, 2014, the ARO found that the worker had not suffered a permanent impairment to his low back as a result of the workplace accident of May 17, [2] The ARO rendered his decision based on the written record without an oral hearing. (ii) Issue [3] The issue in this appeal is whether the worker suffered a permanent impairment to his low back as a result of the workplace accident of May 17, 2010 and is entitled to a Non- Economic Loss (NEL) assessment for that impairment. (iii) Background [4] The worker, who is currently 42 years of age, is employed as a furnace operator. He began working for the accident employer on July 26, On May 17, 2010, while climbing onto a fork lift truck, the worker felt a sharp pain in his low back. He continued working for the remainder of his shift. On waking the next morning, the worker experienced pain and discomfort in his low back and then developed pain in his left leg. He continued to work, performing his regular duties, but as the pain progressively worsened he sought medical treatment at the Emergency Department of his local hospital on May 23, [5] The Emergency Department doctor diagnosed sciatica but an x-ray performed on May 28, 2010 revealed bilateral spondylolysis and moderate spondylolisthesis at the L5 level of the worker s spine. [6] On June 3, 2010, an Eligibility Adjudicator with the Board allowed the worker s claim. [7] Dr. J. G. Lapinsky, the worker s family physician, noted in a report dated June 24, 2010 that the worker s pain symptoms were not as severe. Dr. Lapinsky referred the worker for chiropractic treatment. When the worker s pain persisted, Dr. Lapinsky referred the worker to Dr. Andrew Gwardjan, a specialist in physical medicine and rehabilitation. Dr. Gwardjan, who assessed the worker on August 25, 2010, diagnosed the worker as suffering from lumbar strain, prescribed pain medication and ordered an MRI examination. [8] The worker continued working following the accident but was assigned modified duties for a period of eight weeks. The worker then returned to his regular duties which he was able to perform by making his own accommodations. [9] An MRI, performed on September 9, 2010, revealed that the worker suffered from multilevel degenerative disc disease with Grade 1 anterolisthesis at L5 on S1 which was secondary to bilateral spondylolysis and bilateral foraminal stenosis. [10] In a ruling dated October 1, 2010, the Case Manager granted the employer 75% relief under the Board s Second Injury and Enhancement Fund (SIEF) policy. The Case Manager described the severity of the worker s accident as minor and that this type of accident would be expected to cause a non-disabling or minor disabling injury with complete recovery expected.

3 Page: 2 Decision No. 1199/15 [11] Dr. George Bibawi, a specialist in pain management, examined the worker on May 6, Dr. Bibawi recommended that the worker continue with his physiotherapy program and also prescribed epidural steroid injections. Dr. Bibawi reviewed the MRI report which he described as revealing mild degenerative disc disease with a disc dislocation at L5-S1 and mild loss of intervertebral space. [12] Dr. A. Balinson, a Medical Consultant with the Board, reviewed the worker s file. In a memo dated November 17, 2011, Dr. Balinson concluded that the MRI report revealed findings that were exclusively pre-existing degenerative changes and that the lumbar strain which the worker suffered on May 17, 2010 would appear to have resolved. In the absence of objective medical findings, Dr. Balinson was of the view that the worker s ongoing symptoms would appear to be related to his pre-existing condition. He recommended that updated medical information be obtained to determine whether there was an ongoing aggravation of the worker s pre-existing condition. [13] The Board referred the worker for a multi-disciplinary assessment at its Back and Neck Specialty Program. Dr. Nigel Clements, an orthopaedic surgeon and Ms. Anna Lee, a Registered Physiotherapist, assessed the worker on January 5, In his report, Dr. Clements concluded that no further diagnostic testing was required and surgical intervention was not needed. He recommended an eight-week program in McKenzie specific exercises conducted in a warm water pool. Ms. Lee concurred in this recommendation. Dr. Clements also recommended a gradual reduction and eventual discontinuation of the narcotic medication that the worker was taking. [14] In a follow-up report, dated June 21, 2012, Dr. Clements noted that the worker had attended the warm water exercise program and although he had experienced some initial difficulties, he had made significant improvements as a result of the program. Dr. Clements noted that the worker was continuing to perform his regular job duties with the exception of operating the fork lift truck. Dr. Clements recommended that the worker continue to follow a self-directed exercise program which he felt would minimize the aggravation of his pre-existing pathology of spondylolitic spondylolisthesis in his lumbar spine. Dr. Clements also was of the view that the worker could return to his full pre-accident job duties on a graduated basis. The worker returned to performing his full pre-accident job duties on August 29, [15] In a ruling dated September 24, 2012, a Case Manager with the Board found that the low back strain which the worker suffered on May 17, 2010 aggravated a pre-existing low back condition. She found that the worker had achieved Maximum Medical Recovery (MMR) and that there was no evidence that the worker had suffered a permanent impairment as a result of the workplace accident. The worker appealed, submitting that the medical evidence showed that he had suffered a disc dislocation at the L5 level which was work related and that he was entitled to an assessment of this permanent impairment. [16] As noted above, the ARO, in his decision dated March , denied the worker s appeal. The ARO found that the worker had suffered a myofascial strain on May 17, 2010 which aggravated a pre-existing spondylolytic spondylolisthesis at L5-S1. He found that the worker had returned to his regular job duties and had reached MMR by June 21, The ARO also found that the continued self-directed physiotherapy program, which was recommended by Dr. Clements, was to minimize any aggravation of the worker s pre-existing condition.

4 Page: 3 Decision No. 1199/15 (iv) Law and policy [17] The date of accident for this appeal is May 17, Consequently, the Workplace Safety and Insurance Act, 1997 applies to this appeal. Pursuant to section 126 of the Act, the Board has identified Policy Package #261 (Revision #9) NEL Entitlement and Policy Package #300 (Revision #9) Decision Making/Benefit of Doubt/Merits and Justice as applying to the subject matter of this appeal. [18] I have considered these policies in my adjudication of this appeal. [19] I also had before me a copy of a Medical Discussion Paper prepared for the Tribunal. 1 Back Pain is a discussion paper prepared by Dr. W.R. Harris and Dr. J.F.R. Fleming (with supplemental information by Dr. Stanley D. Gertzbein) in March 1997 and revised in February The Tribunal also included in the Case Record a copy of a paper titled What researchers mean by published by the Institute for Work and Health (Version 1.0) July (v) Submissions [20] The worker s representative provided written submissions dated March 9, He submitted that the MRI shows evidence of the desiccation of the worker s disc at L5-S1 and that this injury was caused by all the walking and climbing on the lift truck over the years. He submitted that the work performed by the worker caused a permanent aggravation of his preexisting condition. [21] The worker s representative referred to Tribunal Decision No. 2160/06 and Decision No. 3085/00 which, he submitted supported the worker s claim for entitlement. (vi) Findings and conclusions [22] For the reasons that follow, I have decided to deny the worker s appeal. [23] The evidence establishes that the worker suffered a low back strain on May 17, 2010 when he climbed into a forklift truck. I am in agreement with the conclusion reached by the Case Manager that this was a minor accident which would not be expected to cause a disabling injury or, if an injury occurred, a complete recovery would be expected. The worker s claim was accepted on the basis that the workplace accident had aggravated an underlying pre-existing condition. Entitlement on an aggravation basis is limited to the acute period of the injury and benefits continue until the worker has reached his pre-accident state. [24] I accept the diagnosis of the worker s injury as stated by Dr. Clements in his report dated January 5, After reviewing the MRI report and examining the worker, Dr. Clements concluded that the worker had sustained a lumbar myofascial strain with aggravation of a previously asymptomatic pre-existing spondylolytic spondylolisthesis of L5 on S1. I note that Dr. Clements also concluded that the worker required no further diagnostic testing and that surgical intervention was not required. 1 The Tribunal s medical discussion papers deal with medical topics which frequently arise in appeals. They are written by independent experts who are recognized in their fields of specialization. The papers are not peer-reviewed publications, but are rather intended to provide parties and representatives with a broad, general overview of medical topics. A discussion paper is included in the case materials for an appeal when it appears that the paper may provide some relevant background to an issue in dispute. Medical discussion papers are also available on the Tribunal s website and in its Library. A Vice-Chair/Panel is not bound by any information or opinion expressed in a discussion paper, but may consider and rely on the general medical information provided by the paper. Every Tribunal decision must be based upon the facts of the particular appeal. It is always open to the parties to rely upon a discussion paper, or to distinguish or challenge it with other evidence.

5 Page: 4 Decision No. 1199/15 [25] Spondylolysis and Spondylolisthesis are described in the Medical Discussion Paper Back Pain in the following terms: In spondylolysis (Fig.8) the pars interarticularis instead of being made of bone is made of gristle. As the gristle is not calcified, it appears as a defect in the x-ray. This is spondylolysis. While the gristle is very strong it is not as strong as bone. Over time it may stretch permitting the upper vertebrae to slip forward on the lower one. This is spondylolisthesis. Both spondylolysis and spondylolisthesis occur most commonly in the 4 th and 5 th lumbar vertebrae. The exact cause of spondylolytic spondylolisthesis is unknown. It occurs in 5% of Canadians and in almost 20% of Inuit. There is no clear evidence that it is caused by trauma. It is commoner in ballet dancers and acrobats who arch their backs a lot. The majority of people with it have no symptoms. But symptoms (back ache) can occur in a person with a pre-existing and painless spondylolisthesis as the result of a strain or repetitive lifting. Once symptoms commence, they tend to recur. [26] Dr. Clements assessed the worker again on June 21, 2012 after the worker had completed the eight-week physiotherapy program of Mackenzie exercises and warm pool therapy. After examining the worker, Dr. Clements concluded that there was no objective evidence of radiculopathy or nerve root damage. Dr. Clements was of the view that the worker could resume his full pre-accident work duties. Dr. Clements also recommended that the worker continue with a self-directed physiotherapy program but noted that these exercises would minimize aggravation of his pre-existent pathology of spondylolytic spondylolisthesis in his lumbar spine. [27] On the basis of Dr. Clements report, I am in agreement with the conclusion of the ARO that the worker had reached Maximum Medical Recovery as of June 21, 2012 and that, by this date, he had recovered from the back strain sustained on May 17, I also accept Dr. Clements opinion that the ongoing self-directed physiotherapy treatment is directed at the worker s pre-existing low back pathology and is not part of a treatment program for his workplace accident. I therefore find that the medical evidence does not support a conclusion that the worker suffered a permanent impairment to his low back as a result of the May 17, 2010 accident. [28] I am also not persuaded that the Tribunal case law submitted by the worker s representative supports the worker s claim for entitlement. Although in the two decisions presented by the worker s representative Vice-Chairs of this Tribunal granted entitlement for a permanent impairment assessment for spondylolisthesis, the evidence on which the Vice-Chairs made their decisions is significantly different from the evidence that is before me. In both cases, the Vice-Chair relied on medical opinions which supported the worker s assertion that the job duties that the worker performed had permanently aggravated the pre-existing condition. In Decision No.3085/00, the Board s Medical Consultant had provided an opinion which the Vice- Chair found supported the worker s claim. As I have noted above, the medical opinions in the Case Record particularly the opinion of Dr. Clements concluded that the worker had not suffered a permanent impairment as a result of the workplace accident. [29] For all of the above reasons, the worker s appeal is denied.

6 Page: 5 Decision No. 1199/15 DISPOSITION [30] The worker s appeal is denied. DATED: August 4, 2015 SIGNED: J.B. Lang